Kenneth Anderson, a law professor at Washington College of Law, American University, Washington DC, and a member of the Hoover Task Force on National Security and Law, blogs on topics related to international laws of war, international law, related human rights topics, international NGOs, and the theory of the just war. (Mostly inactive these days, everything here is first draft and subject to changing my mind.)

Thursday, May 03, 2007

Steven R. Weisman has a story in today's New York Times, Thursday, May 3, 2007, A6, "Committee Is Likely to Say Wolfowitz Broke the Rules." The article largely summarizes the state of play, largely as seen from the hands of European governments and players seeking to oust Wolfowitz. (Update, May 3: I have other posts on the Wolfowitz affair here, here, here, and here (last part of post). Or check under the tags for World Bank.)

The last three paragraphs of the article introduce something quite astonishing, however - quite amazingly, the question of whether the Bank's personnel rules are anti-gay - into this debate over whether Wolfowitz acted inappropriately in his dealings regarding his long time companion and Bank staffer, Shiha Riza. The article quotes from the former number 2 official of the World Bank, former bank managing director Shengman Zhang, who left the Bank shortly after Wolfowitz's 2005 arrival.

Zhang's wife also worked at the Bank - the same situation was true of at least one other senior Bank manager - and the Bank had taken the position that so long as the senior manager recused himself from personnel dealings with his spouse, it was not necessary to require that the wife actually leave the Bank. Wolfowitz had initially sought the same arrangement for Riza - his recusal from any personnel matters dealing with her, but had been rebuffed by the Bank's internal ethics committee, which had ruled, quite harshly from the standpoint of gender equity, that only Riza's actual departure from the Bank would suffice to avoid conflict of interest issues. It was the ethics committee - under the chairmanship of Ad Melkert, now at UNDP (where, as noted in the post below, he has his own considerable ethics issues that bear, one might think, on his credibility in the Wolfowitz matter) - that insisted that Riza leave the Bank.

The questions of special treatment arise from the fact that the committee refused to treat Riza as it had treated wives of other senior bank officials - through recusal - but at the same time it required that, because Riza was being forced to leave the Bank for no reason related to her or her professional performance, she be given some form of buyout compensation.

Wolfowitz had pointed out, early in this process with the ethics committee, that the Bank already had precedent, in Zhang's case and others, for recusal rather than forcing the spouse to leave the Bank, as the proper procedure. Now come the astonishing paragraphs in the Times article. On Wednesday, May 2, Zhang - no longer at the Bank, but formerly its number two manager - circulated a statement throughout the Bank

"expressing irritation that Wolfowitz had cited the fact that, because Mr. Zhang and his wife both worked at the bank, there should be considered a precedent that would allow Ms. Riza to remain there."

So what was the difference between Zhang's position and Wolfowitz/Riza's? According to Zhang, that they were married, and not merely in a sexual relationship. The Bank's rules, according to Zhang - and presumably he should be in a position to know as the Bank's number two manager - permitted

"husbands and wives to work at the bank under circumscribed conditions, which he said he followed, but that they barred anyone from having a sexual relationship with a top bank official outside of marriage." (emphasis added)Do we understand this correctly? People who come into the Bank, such as Wolfowitz, with a long standing "sexual relationship" that is "outside of marriage," cannot operate on the same basis of recusal and professional relationships that people who are married - not just married, he says, but specifically "husbands and wives" - are permitted to do under the Bank's rules. Gay couples who are not "husbands and wives"?

This is breathtaking. I knew that the Bank had governance problems. And like all these institutions of global officialdom, it has limitless rhetoric on diversity, gender sensitivity, etc., etc., which, as this demonstrates, is often no more than a micron thick. But I would not have thought that it would have facially discriminatory, anti-gay-couple rules. But if Zhang is correct, that's what it is. A gay couple, because they are not married and are not "husbands and wives," would not both be able to remain at the Bank if one of them were a senior official - whereas a married couple would. As Zhang added:

"'I trust this clarifies the misleading attempt to equate my case to that of Mr. Wolfowitz', said Mr. Zhang, now a senior vice president at Citigroup in Hong Kong. 'My wife and I worked at the bank under a rule which expressly permitted it. Mr. Wolfowitz attempted to have Ms. Riza work for him in defiance of an express prohibition'."

Well, this certainly clarifies what Zhang thinks separates his case from Wolfowitz's - viz., being husband and wife. I hope that clarifies things for the progressive community, and perhaps the Human Rights Campaign folks as well. Husbands and wives, apparently, don't engage in wrongful professional pillow talk; lovers and partners who are not blessed by the legal status of being husbands and wives apparently might. Perhaps the Europeans, so eager to remove Wolfowitz, or at least to end his anti-corruption campaign by fatally weakening his leadership, might want to ask in what progress consists.

Is this really the Bank's rule? Could it really, truly be that the World Bank would have a rule so nakedly anti-gay? I asked informally - I didn't talk with the Bank's lawyers, as it seemed unlikely anyone would dare respond - and no one seems to know. Zhang calls it an "express prohibition." But where is it written down?

It seems quite possible it is written down somewhere. It seems quite possible it is not written down anywhere - and that the Bank, if pressed on this issue by some NGO group, would deny having any such rule. It also seems quite possible that the Bank has indirectly addressed some such question in some obscure memo from the ethics committee, or some internal employment review panel, or some internal thing - which maybe counts as "express" or maybe just counts as something that no one quite knows about but which can be triumphantly pulled out of a file as needed - or, on the other hand, quietly forgotten if not.

One of the insistent lessons of the Wolfowitz affair with respect to Bank governance is that the Bank manages that great bureaucratic feat, so reminiscent of the "soft" Communist regimes of Yugoslavia, Hungary and today, China (and Zhang's language sounds less like a banker than that of a Chinese Communist Party functionary, does it not?), the twin, simultaneous qualities of infinite discretion combined with infinite rules. A bureaucracy that has a rule for every occasion - and the discretion to ignore them whenever and however it feels like. No wonder the institution is so resistant to Wolfowitz's rule of law agenda.

(Update, May 3: Thanks Glenn for the Instalanche!)

(Update, May 5, Added "personnel" to the above discussion of recusal - sorry, should have caught that. My thanks to the commenters, who have been uniformly courteous and polite, which is not always the case on blogs.

Meanwhile I've had a chance to read through the Bank's personnel rules re domestic partnerships and other relationships. As written they are admirably progressive, and per one of the comments, as an outsider to the Bank around DC, I haven't ever heard of anyone complaining about the Bank as being anti-gay. Far from it. That is why I was so surprised to read Zhang's understanding of those rules in the NYT, and what he thought they meant, because his understanding of them draws a quite invidious distinction between married husbands and wives and all the rest.

But if the number two manager of the Bank can't manage to get straight the rules on something with profound implications for him personally, how is anyone else supposed to do so? Well, in that case, one looks to internal interpretive structures such as the ethics committee for guidance. One may agree or disagree as to whether Riza's departure from the Bank was essential; certainly it was both Wolfowitz's right to ask that she be allowed to stay, just as it was the committee's right to say that she had to go. The comment in the post below that Wolfowitz had asked that the recusal be limited to personnel matters was misconduct seems to me quite wrong; he could ask for it, and the committee could, and did, not only turn him down, but take an even more drastic step. All within the committee's pregrogatives, even if it was at considerable variance, one could argue, with how similar situations had been treated at the Bank.

However, given the baroque complexities of the Bank's rules, and the vagaries of their interpretation, it was not within the committee's prerogatives simply to leave the question of how to comply with its ruling unanswered - or, at least, if if choose, as it did, to leave all those matters open, twice say that the outcome was fine, and only then come afterwards and claim noncompliance and bad faith, in the way the Ad Melkert now does. The expectation after the fact seems to be that Wolfowitz was to read the mind of the committee in how he must comply - in a situation of heads I win, tails you lose. It is very easy, obviously, to say afterwards, well, any reasonable manager would have known that we meant that you do x, y, and z. Anyone can say that and never be wrong. It is, however, an exercise in bad faith, and that, it seems to me, is how Melkert has responded, with whatever larger political agendas he might have.

The other way to look at this is not so much as expressly anti-gay, rather, the question has just never appeared. Now IF they have passed over somone, or have fired someone who is gay for that very reason, that is a whole different ballgame. I'd imagine though, given the small number of Mgr's in question and how long many of them serve, that the question hasn't been addressed, simply because it has never come up. The keyword is "YET" so the bank IS going to have to figure this out. I'd assume that they have standard anti-discrimination policies... sounds like there was an executive exception thing going on.

You got it wrong."Wolfowitz, through his attorney, defined his own recusal as an offer only not to interfere in personnel matters (which would not have concerned him anyway) while maintaining unrestricted ongoing professional contact with Riza."

This is totally different from the spouses no matter what gender they are. There are his words:

"RECUSAL PROCESS WOULD NOT -- I REPEAT, NOT -- INVOLVE RECUSAL FROM PROFESSIONAL CONTACT"

the world bank is NOT anti-gay. the rules that mr. zhang cite include "domestic partners." the bank provides full spousal benefits to domestic partners. wolfowitz is still married; he also has a relationship with ms. riza. is their relationship formal? no. are DPs considered formal relationships? yes.

The rule for married couples ALSO APPLIES EQUALLY to recognized "domestic partners."

In most cases, HR regulations at the Bank that apply to legally married couples ALSO apply to same-sex couples who have obtained some form of legal recognition of their relationship (whether domestic partnership or something else).

So if there is some form of discrimination here, then it is in treating sexual relationships (regardless of the gender of the people inside them) without legal recognition differently from sexual relationships that do have legal recognition.

I work at the World Bank and, although I don't pretend to be thoroughly familiar with all its rules and regulations, I do have reasons for paying attention a little more than most to how the Bank treats same-sex couples here.

I can't speak for everyone, but personally I haven't heard of anyone getting fired or passed over for being LGBT. The HR regulations are not 100 percent perfect in every way, but I think they're still generally ahead of the curve on GLBT issues compared to many organizations in the private sector, and probably also ahead of the curve compared to other organizations in the international development field.

I can confirm that the World Bank Group is in the vanguard of all international organizations in its recognition of domestic partners, same-sex or opposite sex. Wolfowitz/Riza are not eligible to be domestic partners, in the main because they do not live together, but also because Wolfowitz is not divorced, which is, above all, determinative for this and all DPs. The World Bank's benefits for registered DPs are exactly the same as for married couples, with two small exceptions. Those two benefits are granted to same-sex married couples. I've been here a long time and there is no evidence of anti-gay discrimination. The one area on which work is needed is visas for same-sex partners/spouses, but that is under the control of the US Government. Overseas, though gay staff have taken partners to field offices, and enjoy full Bank recognition. It's disappointing that the original blog mixed up 'sexual relationships' with 'partnerships'. As anyone conversant in this area knows, 'sexual relationships' in the workplace raise issues of power, potential coercion and erosion of trust and morale among colleagues, and that is why wise and well-run organizations treat them quite differently. Shaha's special treatment makes it hard for other women, of talent and collegiality, who rise on account of their merit and must face whispering behind their back by jealous colleagues.

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